Ruling a setback for Hong Kong’s image as a fair and tolerant city

June 03, 2018 at 05:40 AMSCMP

The judiciary has played a key role in combating official discrimination against sexual minorities in recent times, with spirited judgments upholding the principle of equality. Friday’s ruling by the Court of Appeal bucked that trend. It is a setback for Hong Kong’s image as a fair and tolerant city.

Hong Kong civil servant Angus Leung Chun-kwong married his male partner in New Zealand in 2014. His legal challenge sought equal treatment with heterosexual married couples, when claiming spousal benefits and a joint tax assessment in the city. He argues he is a victim of discrimination. Leung succeeded with his claim for benefits in the Court of First Instance, but lost on the tax point. Both decisions were then challenged on appeal.

The Court of Appeal ruled against Leung on both issues on Friday. The ruling is disappointing.

The court decided marriage is such an important institution in Hong Kong that any indirect discrimination suffered by Leung in this case can be justified. And marriage, as defined by the city’s laws, can only be between a man and a woman. Heterosexual marriage would be undermined if same-sex couples were entitled to equal treatment in such matters, the court said.

There were repeated references in the lead judgment to the “prevailing socio-moral values of Hong Kong society”.

The reasoning, put simply, is that the majority of Hong Kong people do not support same-sex marriage, therefore the court should not disturb the status quo. The court even referred to opinion polls cited by the government to support its decision.

If this is an accurate assessment, it is a sad reflection on Hong Kong society. It underlines the fact that the city is increasingly lagging behind other parts of the world which have embraced equality and non-discrimination. Australia’s parliament voted to legalise same-sex marriage last year. Taiwan’s top court has ruled in favour of it.

Hong Kong, as a vibrant, tolerant, international city should be embracing change. If legalising same-sex marriage is currently a step too far, the government should at least protect gay couples from discrimination. It is not just about individual rights. Hong Kong is competing for talent and the city’s discriminatory laws and practices are holding it back.

It is to be hoped that Leung will take his case to the Court of Final Appeal. The top court will soon hear a challenge to a Court of Appeal decision granting the lesbian partner of a Hong Kong resident the right to a dependency visa. But it would be better if such matters are dealt with by the government.

It should be removing discriminatory laws and practices, instead of seeking to uphold them in court. The city needs to move forward instead of clinging to the past.